Appeal from the Circuit Court of Tazewell County; the Hon.
JOHN T. CULBERTSON, JR., Judge, presiding. Affirmed.
This is an action for interpleader brought by plaintiff, Thomas E. Kirby, manager of a tract of land known as the Gumm Farm, in which he asked the Circuit Court to determine the person or persons entitled to receive certain income from said farm which was then in his possession. Joined as defendants were the children and grandchildren of Vincent P. Turner, Sr., deceased, who owned a one-third interest in the Gumm Farm at the time of his death.
Disposition of Turner's interest in said farm was made by the fourth paragraph of his Last Will and Testament, which is in pertinent part as follows:
"To my wife, Emma Coon Turner, the net income from my undivided one-third (1/3) interest in the Gumm Farm, Kilbourne Township, Mason County, Illinois, for and during her natural life, and at her death to revert back to my heirs, then living."
The controversy in this case arises from the conflicting claims to the Gumm Farm income advanced by the surviving children of the testator and those made by his grandchildren.
The testator had four children. Two of these children, Mary Ellen Ludwig and Vinetta Mead, are surviving. They joined in an answer to the complaint, claiming the exclusive interest to the income from the farm. The other two children of the testator, Robert Turner and Vincent Turner, Jr., are deceased. Robert was born of the testator's first wife and Vincent, Jr. of the testator's second wife. The children of Robert joined in an answer and the children of Vincent, Jr. joined in a separate answer. In these answers all of said grandchildren claimed that they, together with the surviving children of the testator, have an interest in the income of the farm.
The cause was heard on the pleadings and stipulation of facts and as a result the court held that the testator's two children each has a one-fourth interest in the Gumm Farm and that each of the grandchildren has the per stirpes share of their deceased parent. From this ruling Vinetta M. Mead and Mary Ellen Ludwig have appealed.
Appellants contend that the issues in this proceeding were determined by a prior decree entered by the Circuit Court of Peoria County in a suit to construe the Will of Vincent P. Turner, Sr., deceased. This suit was brought in September of 1934, or about a year after the testator's death. The decree in that case recites that it was the intention of the testator, Vincent P. Turner, that "Each of his said four children should take a vested interest in the real estate specifically devised to them at the date of the death of said testator except as to their interest in the premises described as the Gumm Farm, which is a contingent interest dependent upon their survivorship of the widow, Emma Coon Turner." Said decree further recited that it was the intention of the testator that his interest in the Gumm Farm "should be taken only by those of his heirs who should survive his widow . . . and that the interest of his said children in . . . the Gumm Farm, should be contingent upon their survivorship of the widow. . ."
In 1953 a suit to partition the Gumm Farm was filed in the Circuit Court of Mason County and culminated with a decree which set off and allotted the one-third interest owned by the testator at his death in accordance with the testator's will, as construed in the above described proceedings in the Circuit Court of Peoria County.
Appellants assert that in said prior decree construing the will the court held that the testator intended that only his children should share in the remainder interest in the Gumm Farm and that under the doctrine of res judicata such decree is conclusive and binding upon the children of Robert S. Turner and Vincent P. Turner, Jr. who are defendants in the instant case.
As to those grandchildren of the testator who were not made parties to the prior suit because they were not in existence, it is nevertheless contended that they were fully represented in such suit by their parents; that their interest therein was identical with that of their parents; and that under the doctrine of virtual representation, the decree is binding upon the grandchildren's interest.
The doctrine of virtual representation, as it is applied to successive estates or interests, was clearly set forth in Weberpals v. Jenny, 300 Ill. 145, 155, 133 N.E.2d 62. The court there stated that:
"Where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him. It must appear that he stands in the same situation as parties before the court and that he has a common right or interest with them, the operation and protection of which will be for the common benefit of all and cannot be to the injury of any."
Obviously such doctrine is not applicable to the facts in the case at bar. How can it be said that there exists a community of interest between those to be bound and their representatives when the current position of such representatives is that those they represented have no ...